October 2013

Google Says Gmail Scanning is Intended to Serve, Not Snoop

Sometimes the smell of success smells a lot like a courtroom. Like any powerful and global corporation, Google Inc. is no stranger to the fragrance, and much of the attention it’s getting centers around privacy.

The latest challenge Google faces is for its practice of targeting users with advertising based on what they are writing in their emails. Writing to your car dealer? See new car ads. Writing to your accountant about your tax return? See an ad for CPAs. Writing to your brother about why you’re bald and he isn’t? Ads for hair growth, ocean-ready toupees and counseling for sibling rivalry might appear on your screen as if by magic.

Google is on the receiving end of six state class actions over its Gmail scanning practices. In the Pennsylvania case, for example, the plaintiff Gmail user charges Google with violation of the state’s wiretapping and electronic surveillance control law through its “intentional interception and use of electronic communications” sent by the plaintiff and members of the proposed class of Gmail account holders in the state. Google, the suit says, “utilizing multiple devices and methodologies, intercepts and scans all electronic communications sent to Gmail account holders prior to their receipt and review by the Gmail account holder/recipient.” The lead plaintiff in the case says she never gave Google permission to scan her email, nor did the search giant advise her of its email scanning practices. The suit seeks injunctive relief and statutory damages based on each day Google allegedly violated the laws.

Microsoft has seized upon the consumer assault on Google to promote its service. “Unlike Gmail, Outlook.com [fka Hotmail] doesn’t go through the content of users’ emails to show ads. Outlook.com hopes this campaign will help educate consumers about Google’s email practices and promote Outlook.com’s policy of prioritizing the privacy of its users’ emails.”

“Google even goes through emails from non-Gmail users to generate advertising income,” Microsoft maintains, including email written by Outlook.com users. And, it says, Gmail users cannot opt out of the ad program.

Scroogled? Really?

Microsoft launched a petition to help give Google the message, it says, that scanning the substance of emails for the purpose of pushing advertising to users is not acceptable. Microsoft has launched the “Don’t Get Scroogled by Gmail” consumer education campaign, contributing yet another new word to the Internet lexicon.

Microsoft even commissioned a survey which, the company says, reveals that 88 percent of Americans disapprove of having their emails scanned as part of targeted advertising campaigns. Fifty-two percent “disapprove strongly,” the company says. The majority of those polled think the practice is an invasion of privacy and didn’t believe or didn’t know that any email service provider scanned personal email. Eighty-eight percent say they should be able to opt-out, Microsoft says. Just over 1,000 people participated in the survey.

Google maintains that it does not violate privacy rights and uses the data not to snoop but to serve the market. "Advertising keeps Google and many of the websites and services Google offers free of charge. We work hard to make sure that ads are safe, unobtrusive and relevant. No humans read your email or Google account information in order to show you advertisements or related information," the company said in a statement to users.

According to the Los Angeles Times, Gmail began closing in on Yahoo as the No. 1 email provider in December 2012. Citing research from ComScore, the newspaper reported that Yahoo had 78.7 million unique visitors, a year-over-year decline of 12%, while Gmail had 76 million, a gain of 21%. Microsoft had 34.3 million email users of Outlook.com, fka Hotmail.

“Why does it matter?” asked Times reporter Jessica Guynn in her Feb. 6 article. “Free email services continue to be an important draw even as people rely more and more on messages on Facebook and Twitter or text messages on phones to communicate with family and friends. Such services keep people coming back, and when they are logged in, allow Internet companies to more easily track and tailor ads to their interests and tastes.”

As reported by LexisNexis’ Law 360, Google has moved to consolidate the six proposed class actions into a federal Multidistrict Litigation action in California.

Street Fight

The Gmail fight is heating up shortly after the search engine behemoth settled an eight-state investigation of its “accidental” gathering of information via the wireless connections in people’s homes. This gathering took place as Google’s Street View cameras were being driven around the country. The cameras, which look like a clear plastic globe on a tripod strapped to the tops of cars, are used to capture those cool 360-degree images from the street, enabling users to virtually walk or drive down a street and look around. Google says it tried to improve its location services by identifying wireless Internet signals.

Google agreed to pay a $7 million fine and launch an internal privacy education program. Its attorneys must take training, too. The company must run a public education campaign as well, which includes YouTube video and both online and print ads.

According to a post on JDSupra by Infrah Law, a law firm comprising former federal and state prosecutors, “This is another example of states taking a more aggressive approach to protecting consumer privacy rights when the federal government does not. The Federal Trade Commission investigated this activity by Google but closed its case without a fine. The Federal Communications Commission also investigated, and issued a $25,000 fine, but that fine was largely for Google allegedly hindering the investigation.” The Infrah Law post said that “companies must make sure they are not unintentionally collecting unnecessary sensitive information in the course of their business activities.”

Key Takeaways

Keep an eye on the attorney-client confidentiality aspects of email scanning programs.

Educate clients about the use of free email services so they are fully informed.

Advise clients not to collect and store unnecessary private information.